State v. Hyslop, Unpublished Decision (9-21-2007)

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that resentenced appellant in compliance with State v.Foster, 109 Ohio St.3d 1, 2006-Ohio-856, following remand from the Supreme Court of Ohio. Pursuant to 6th Dist.Loc.App.R. 12 (A), this case is hereby assigned to the accelerated calendar.

{¶ 2} On April 14, 2003, appellant was indicted on one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(c), a third-degree felony. A jury found appellant guilty of the charge and on October 1, 2003, appellant was sentenced to a non-minimum four-year prison term. Appellant appealed his sentence and this court affirmed the trial court's judgment. State v. Hyslop, 6th Dist. No. L-03-1298, 2005-Ohio-1556. A discretionary appeal to the Ohio Supreme Court was allowed in 2005, and in 2006, appellant's sentence was reversed and remanded to the trial court for sentencing pursuant toFoster, supra. In re Ohio Crim. Sentencing Statutes Cases,109 Ohio St.3d 313, 2006-Ohio-2109. On March 22, 2007, the trial court again imposed a sentence of four years.

{¶ 3} Appellant presents two assignments of error, both of which contend that the trial court violated the Due Process and Ex Post Facto Clauses of the United States Constitution when it resentenced him in accordance with State v. Foster, supra, which was decided after appellant committed the offense of which he was convicted. This court has already addressed this issue in State v. Coleman, 6th Dist. No. S-06-023, 2007-Ohio-448. Therefore, on the authority of State v.Coleman, we find appellant's arguments to be without merit. Accordingly, appellant's first and second assignments of error are not well-taken.

{¶ 4} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered, pursuant to App.R. 24, to pay the costs of this appeal. Judgment for the clerk's expenses incurred in the preparation of the record, feels allowed by law, and the fee for filing the appeal is awarded to Lucas County.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, P.J., William J. Skow, J., Thomas J. Osowik, J. CONCUR.